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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi there, I have been offered a job with a company I used

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Hi there,
I have been offered a job with a company I used to work for. My current employer has done business with then in the past and there is a clause in my current contract that says I cannot work for customers of my current employer until after 12 months of termination of my employment. The clause says I cannot solicit or take away competition from them with with companies they have dealt with. The new role is not the same as my current one, it's not related to my current employment.
An ex colleague has told me I don't need to worry, but now I've handed in my notice and successfully securing a new position I am worried.
Any help or advice would be grateful.
Many thanks
Ben Cross

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Apart from working for a customer, how are you likely to affect your current employer by doing this - will you poach clients, staff, use confidential informaiton against them, etc?

Customer: Hi Ben, nothing along those lines at all, currently I am a consultant dealing with a piece of software, but in the new role I will be a planning and reporting lead. There might be some aspects that overlap I.e. Some software but as a whole my role is different.
Ben Jones :

So your current employer's business will not be affected in any way?

Customer: No it shouldn't, an old colleague of my current employer was made redundant and was allowed to go to the company to work doing the same business he was at my current employer.
Ben Jones :

has the employer said anything about this yet?

Customer: i have not told the current employer about the new positions, just handed in my notice. I didn't want to tell them.
Ben Jones :

ok let me get my response ready please

Customer: okay thank you
Ben Jones :

You are basically subject to a contractual restrictive covenant. It is common for employers to want to protect their business interests from unfair competition by current and ex-employees. This applies especially to employees who have knowledge of sensitive and valuable information, have considerable influence over the workforce or have strong customer connections. However, at the same time it is in the public interest to ensure that employees are free to move between employers and use their skills, knowledge and experience in a new setting.


Whilst employers try and impose certain restrictions on their employees, under the doctrine of restraint of trade, any contractual term which seeks to restrict an individual's freedom to work for others or carry out his trade or business is illegal and unenforceable. The exception is when the employer can show it has a legitimate business interest that requires protection.


Legitimate business interests (LBIs) are commonly accepted to include:

  • Trade secrets and confidential information

  • Trade or customer connections

  • Stability of the workforce


An employer cannot impose a restrictive covenant merely to stop someone competing, but it can seek to stop that person using or damaging something which legitimately belongs to it, such as an LBI.


The most common restrictions, and the ones that apply to you, are:


  1. Non-solicitation covenants - preventing an employee from contacting the customers of their ex-employer. Recent case law has suggested that solicitation means “directly or indirectly requesting, persuading or encouraging clients of the former employer to transfer their business to their new employer". This should be restricted to customers with whom the employee had contact during a specified period before leaving. Other relevant factors may include the employee's level of seniority in the business, the extent of their role in securing new business, the length of similar restrictions in the employment contracts of competitors. Generally, restrictions against potential customers will be harder to enforce.

  2. Non-competition covenants – these will generally be unenforceable, unless the employer can justify their use. As a matter of general law, once they leave employees are restricted from disclosing confidential information amounting to a trade secret. As with non-solicitation covenants, the restriction must be for a limited time. The geographical extent of the limitation must also be considered.


In summary, the law on restrictive covenants is very subjective and depends largely on the individual circumstances of the business and the LBI that needs to be protected. There are no set rules and procedures, apart from the requirement for the restrictions to be reasonable and go no further than is required in the circumstances. Therefore, it is usually only down to the courts to establish whether a restriction is enforceable and, if so, whether an injunction should be granted or damages should be awarded. However, I must say that in your circumstances that is unlikely.

Customer: Thank you for the answer! :o)
Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best

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